Brendan Campbell & Carino Dominguez
Examining Minute 323
Much was made of the historic cooperation between the U.S. and Mexico in the September signing of Minute 323–a newly amended agreement on Colorado River-sharing–in Ciudad Juarez, Chihuahua. Conservation is becoming an existential issue on both sides of the border, but Mexico has recently ceded some ground on its binding claims, and U.S. politics has brought into question the sustainability of fair agreements between the two countries in general.
For now, the perspective from the U.S. is pretty optimistic.
“I think it’s important to know that the two countries, regardless of other things that are seen or heard in the media, at least on the water side, and the Colorado basin, and in the Rio Grande, they’re working very closely together," said Daniel Bunk, hydrologist at the Lower Colorado Bureau of Reclamation (LCBR). “We’ve got really good cooperative relationships with Mexico, and we feel like both countries are in on it together.”
Tap water for roughly ten percent of the U.S. population is sourced, in whole or in part, from the Colorado River, according to the U.S. Department of the Interior (DOI). As the population of Western states like Colorado, California, Arizona, and Nevada has undergone rapid expansion in the last couple decades, this precious resource has been dwindling on both ends; supply and demand.
DOI records dating back more than a century show that the drought conditions experienced in the Upper Basin, where the Colorado is sourced from mostly surface water and snowpack, have not been seen in almost a thousand years.
For 17 years now, the water levels at vital reservoirs like Lake Mead and Lake Powell have been either dropping, or carefully maintained by various measures, and this has spurred both contentious battles and proactive cooperation. As they say, water is life.
The beleaguered Colorado River, though, has not just been stretched across those states subject to the 1922 interstate compact on water rights, but also to Mexico and several American Indian tribes. A 1944 U.S.-Mexico Water Treaty promised 1.5 million acre-feet to Mexico annually, in perpetuity.
In response to the drought, Secretary of the Interior Dirk Kempthorne set 2007 guidelines based on levels of shortage measured in the largest reservoir, Lake Mead. They called for progressive cuts in shared allocations between the states.
The next step, as American officials saw it, was to get Mexico on board with this rationing regime. Although negotiators take a very positive view of the latest agreement, the degree of its fairness remains far from consensus between citizens and officials on both sides of the border.
Amendments to the 1944 Water Treaty are referred to as ‘minutes,’ and are fully binding. The turning point from direct delivery of Mexico’s 1.5 million acre-feet was the 2010 Minute 318, originating from catastrophic infrastructure damage due to that year's devastating magnitude 7.2 earthquake that had its epicenter at Guadalupe Victoria, Baja California. Under 318, it was agreed that Mexico would defer delivery of a portion of its allotment, to be stored in Lake Mead while repairs were made.
Minute 319 followed in 2012, and was a five-year agreement that instituted pilot provisions of an exchange program under which surplus from conservation efforts on both sides of the border would be stored in the U.S. reservoir. In return, Mexico would receive U.S. funding for water infrastructure, as well as environmental restoration including “pulse flows” to revive the long-desiccated delta south of the Morelos Dam at the border near Yuma, Arizona.
Minute 323 formally brought Mexico fully into the water-sharing and shortage regime agreed to by the U.S. states in 2007. This was a dramatic agreement for a couple reasons.
Importantly, it laid the groundwork for fully integrated collaboration as the droughts persist, and probably worsen. On the other hand, Mexico gave away the solid guarantee it was entitled to under the Water Treaty, to a permanent sustaining supply of water for its northwestern states.
Amy Witherall, the Bureau of Reclamation Binational Program Manager based in Los Angeles, pointed out that the seven-year-old damage done by the Guadalupe Victoria earthquake has still not been fully recovered from, and that Mexico is still in need of this storage capacity.
The timing of 323, and Mexico’s conceding to future shortage rationing, was not coincidental, though. The Compact states were quickly approaching the expiration of Minute 319, and were facing, for the first time, imposition of the 2007 DOI shortage rations.
"The water that Mexico has put in Lake Mead from Minute 319–it’s about 250,000 acre feet–has been absolutely critical in keeping out of implementing shortage in the Lower Basin,” said Jennifer McCloskey, Deputy Regional Director of the LCBR.
As much as Mexico may have still needed to temporarily store water in Lake Mead, the U.S., dangling more investment in the infrastructure needed to resolve this issue, was pushing to maintain the status quo at Lake Mead into the future, and at least further forestall rationing in the Compact states.
The height of negotiations for Minute 323 fell in the midst of the 2016 U.S. presidential elections, and there was a feeling that American negotiators were not getting as much movement out of Mexico as they needed.
That all changed when, to almost universal surprise, Donald Trump was elected President by virtue of the Electoral College, on a platform that included renegotiating or withdrawing from NAFTA, forcing Mexico to pay for a fantastical, monolithic border wall, and generally squeezing concessions out of every relationship between the two countries.
“I think it’s actually helped,” McCloskey said of the election at a November conference of water professionals and academics in Tucson, Arizona. “It was a key turning point in the negotiation. No risk of NAFTA, or the Wall, has taken us back per se, and to some degree it maybe even has helped to fuel some urgency in the negotiation.”
“Our water careers are a lot of memories, right? There are these amazing days that you have,” McCloskey said to a panel audience. “One of the most significant days that I’ve had in my water career so far was the day that President Trump was elected. We were all negotiating in San Diego. Everybody was absolutely shocked and surprised. We had just had a day of negotiation, then there was the election, and we all came back to the table. We made a lot of progress right after the election.” Her comments drew knowing laughter from the audience.
The implication was clear: Mexico would acquiesce more to U.S. goals, now that it faced an openly hostile President-elect that was threatening to severely undermine its entire economy.
U.S. water negotiators are dedicated, highly-trained bureaucrats and scientists that refer to their "water careers" as proudly and purposefully as any foreign service officer would invoke their ‘diplomat’ moniker. The problem is that they are often thrust into highly political situations, and this can diminish the underlying goodwill of an international agreement as important as the 1944 Water Treaty.
Aside from any imbalance in international negotiations, American officials and negotiators face nowhere near the domestic pressure that those in Mexico do. McCloskey, for example, pointed to one of her counterparts, Mexicali Office Director Francisco Bernal, as an indispensable partner in the formation of Minute 323.
Bernal did not respond to requests for an interview, but he does have his hands full these days. He and his colleagues at the Mexican section of the International Boundary and Water Commission (known as the CILA) are primarily responsible for negotiations involving all international water issues in their region.
Two days after the signing of Minute 323, Bernal’s Mexicali office was swarmed by protesting farmers, outraged at a new agreement for water sales to San Diego. Baja California is just as dependent on the Colorado as Arizona. The Los Angeles Times reports that over half the state is also in severe drought, and 85 percent of its guaranteed allocation is used for agriculture. These farms largely sustain the economy, and provide much of the produce harvested for U.S. import every year.
There is simply a more complex, and powerful bureaucratic and political structure handling negotiations on the American side. Its section of the International Boundary and Water Commission oversees agreements regarding the Rio Grande, Colorado River, and Tijuana River, and works in congress with five Bureaus of Reclamation under the DOI on international negotiations. Their decisions are both subject to final State Department approval, and thereby–if improperly–obviously subject to the President’s opinion and influence.
Even the best trial attorney never likes to see the proverbial ‘army of corporate lawyers’ coming.
Nonetheless, Mexican negotiators and diplomats dismiss the pleas of Baja California farmers, and insist they are happy with the outcome of Minute 323. It is also true that the vital infrastructure and environmental initiatives that have been pledged by the U.S. were probably impossible for Mexico to achieve on its own.
Previous to the Trump Administration, DOI documents had referred to the Colorado River shortages in terms of historic droughts caused by, and expected to intensify due to, climate change. Setting aside weedy hydrology statistics, and rosy diplomatese, this is the 800-pound gorilla on the border.
As the U.S. builds a football stadium in Las Vegas, and corporate water-bottling plants using municipal water in Phoenix, the people in Baja California and Sonora mostly depend on their promised share of the Colorado River for subsistence–to maintain their way of life and their own comparatively meager economy. Water is indeed life, and the question will be whether Minute 323 proves out to be a mutually beneficial act of self-preservation, or the rather benign beginning of a winner-take-all competition of scarcity.